Must an employer provide a reference?
Employers may be requested to give references for current and former employees seeking new employment, but in normal circumstances there is no legal obligation to provide a reference (but see victimisation below).
An employer may, for example, refuse to provide a reference if there are on-going legal proceedings and the terms of a reference could prejudice its defence.
What obligations does an employer have?
If an employer provides a reference it owes a “duty of care” to both the prospective employer and the employee to ensure that the reference is both fair and accurate, and not misleading (whether favourably or unfavourably).
An employer should also ensure that adverse comments about an employee, even if expressed as subjective opinion, can be substantiated – usually by documentary evidence such as appraisals or disciplinary records.
An employer may also make reference to significant and relevant events, eg. an employee’s disciplinary record or a resignation pending disciplinary proceedings, provided this can be justified.
What liability does an employer have?
If a reference (whether written or verbal) proves to be inaccurate, an employer may face claims for damages for negligence from (1) a prospective employer who might otherwise not have engaged the employee, had the reference been accurate and (2) the employee who fails to secure potential employment.
A refusal to provide a reference, or providing an unfair reference, may also amount to victimisation if it is for a discriminatory reason (see our notes on Discrimination).
How can liability be avoided?
The most common approach is to limit the reference given to minimum factual information and/or to make it clear the reference is given in confidence with a legal disclaimer excluding liability to third parties if it relied on.
Many employers also introduce policies restricting the number of employees who are authorised to give references and provide appropriate training to support this. Depending on the wording of the policy this can be treated as a disciplinary matter.
Can employees get a copy of their reference?
References given in confidence cannot generally be obtained from the recipient and an employee must usually direct a subject access request under the Data Protection Act 1998 to the employer.
Contact us if you have a query relating to references.